Wednesday, October 03, 2012

Technicalities and the Law

By Sherry F. Colb

In my Verdict column for this week, part 1 of a 2-part series, I discuss United States v. Skinner, a case in which the U.S. Court of Appeals for the Sixth Circuit held that the police may track a suspect's real-time location over time through his cellphone signals without having to obtain a warrant. Location-tracking, in other words, is not a Fourth Amendment "search," under this decision. In my column, I discuss differences between Skinner and the recent U.S. Supreme Court case of United States v. Jones, in which the Court held that attaching a tracking device to a car and thereby monitoring a suspect's whereabouts on the public roads does constitute a Fourth Amendment search and therefore violates the Constitution in the absence of a warrant supported by probable cause. One important difference between Skinner and Jones lies in the fact that police in the latter but not the former case attached a tracking device to the suspect's private property without the suspect's consent, thereby perpetrating a trespass.

In my column, I examine the implications of relying on this trespass/no-trespass distinction for Fourth Amendment doctrine. Here, I want to explore a broader phenomenon of which the Sixth Circuit's focus on trespass represents one example: the elevation of form over substance, also known as ruling on the basis of "technicalities."

As a parent, I am quite familiar with the time-honored practice of identifying loopholes and thereby violating the spirit of the law while honoring its letter. One of my children, for example, might respond affirmatively to the question "Did you brush your teeth?," but it will turn out that the toothbrush is dry and therefore could not have been recently used. So did my child lie? Not technically, because my earlier question about tooth-brushing did not specify a time (e.g., by asking "Did you brush your teeth in the last twenty minutes?") but instead asked a more open-ended question. The fact that "Well, I brushed my teeth yesterday" thus technically gives the statement "yes" in response to my question a positive truth value. Nonetheless, both my child and I would understand what my question meant, and the affirmative answer was thus -- if technically accurate -- something less than a sincere response.

At this juncture, let me share a "lawyer" joke, for reasons that I hope will become clear momentarily. A man on his death bed summons his three best friends to his side, a rabbi, a priest, and a lawyer. The dying man, named Joseph, announces to his friends, "I am soon going to die, and I believe -- contrary to what people often say -- that you can take it with you. Therefore I would like my fortune -- $300,000 -- to be buried along with me. I am going to give each of you $100,000, so that you can carry out my wishes." He then hands each friend a large bag filled with cash, each adding up to $100,000, and all three friends promise to carry out his request. The three men disperse, and a month later, their friend dies.

At Joseph's funeral, the rabbi, the priest, and the lawyer are present, and each throws a bag onto Joseph's coffin in the ground during the burial. A few night later, the three men meet for coffee to talk about their old friend. After some initial reminiscences, the rabbi volunteers that he has a confession to make. He says, "I felt terrible about letting all of that money go to waste, but I did make a promise, so what I did was, I took half of the money and donated it to a local orphanage, and I threw only $50,000 of the money into the ground." The priest chimes in at that point, saying, "I'm so grateful to you for sharing that confession, because I too felt awful about the waste, so I took out $30,000 and donated it to provide AIDS treatment to poor people overseas. I threw the remaining $70,000 into the ground." Hearing these confessions, the lawyer shakes his head in judgment. "How could the two of you go back on your commitment?" he asks. "Shame on you! I wrote Joseph a check for the entire $100,000!"

The joke works (if I have told it properly) because people think of lawyers as experts in technicalities, able to exploit the inevitable loopholes in the rules to do what they (we) want and then claim to have the moral high ground. The stereotype is unfortunate, but it is not surprising, given that humans are fundamentally a "rationalizing" species and that lawyers, particularly when defending conduct that is already undertaken, are experts at rationalizing the conduct. The problem, of course, is that to be known as an expert in rationalizing is to be known essentially as a liar, even if we are not "technically" lying (and can thus maintain plausible deniability).

The reason I mention all of this in connection with the Sixth Circuit and Supreme Court cases about tracking and the Fourth Amendment is that, in my view, the distinction between attaching a tracking device (the size of a credit card) to the bottom of a person's car and tracking his movements that way, on the one hand, and collecting locational data emanating from a GPS device embedded in a person's cellphone at the time of purchase and tracking his movements that way, on the other, is a technical distinction, one of form and not of substance. As Justice Alito ably explains in his concurrence in the judgment in Jones, to emphasize the trespass rather than the enormous invasion of privacy is to focus on something that does not really matter to anyone while ignoring something that does. If we are upset that police have been tracking our movements with a global tracking device, we are unlikely to take comfort in the fact that the device was already embedded in our telephone when we purchased it rather than having been placed on the underbelly of our vehicle when we were shopping for groceries. Likewise, if police were listening to our telephone conversations, most of us would find it little comfort to learn that the listening device did not physically touch any property belonging to us.

Technicalities, of course, can matter a great deal. If the government convicts someone for committing a crime with specific elements, it would seem unjust and not merely sloppy if it turned out that several jurors were unconvinced that the government has satisfied all of the elements, but that they thought it was okay because the defendant was plainly guilty of some other offense. Doing "rough justice" fails to satisfy the standards we apply in our criminal justice system. And seemingly tiny errors (e.g., writing "10 milligrams" instead of "1.0 milligrams" on a drug prescription) can bring about catastrophic outcomes. Crossing t's and dotting i's is thus a positive side of attending to apparently small details, and a lawyer's care in reading and writing documents and in thinking about rules is in this sense laudable.

Nonetheless, when a court confronts a case like Skinner (or Jones, for that matter), resting its decision on a technicality (like the presence or absence of a technical trespass) misses the opportunity to demonstrate that the Fourth Amendment in particular, and the law in general, is not there primarily as a "trap for the unwary" but as a sign of our profound commitment to fairness, to justice, to liberty, and to "security" in our "persons," a right expressly named in the Fourth Amendment. As lawyers and judges, it is our job not only to identify loopholes and technicalities to help our clients and causes but to pursue justice, as an abstract ideal and as a concrete commitment. It is in this job that the Sixth Circuit failed in Skinner, though it was "technically" within its rights.

I agree with you that it is unfortunate that the Sixth Circuit thinks that the trespass/no-trespass distinction is sufficient to distinguish between unconstitutional and constitutional GPS tracking under 4A. But I don't want to go as far as to say that the trespass/no-trespass distinction doesn't matter or counts as a mere technicality. Surely trespass should matter to us when deciding whether some government intrusion runs afoul of 4A.

The question is what makes for unconstitutionality in the case of GPS tracking with no trespass without a warrant or probable cause. Justice Sotomayor thinks that what matters is (a) the *kind* of information acquired (familial, political, professional, religious, sexual information), and (b) how *long* the tracking is in place. I imagine that she thinks that (b) is important only because she thinks that (a) is important.

I disagree with Justice Sotomayor. Imagine that a police officer trains a thermal imaging device on my house and discovers that I am in my living room. The officer has discovered no information of a familial, political, professional, religious, or sexual nature, and yet the officer has infringed my right to privacy, and (per Kyllo) acts unconstitutionally without a warrant. The point is that the officer has breached a barrier (by looking through the walls of my house) that is there at least in part to prevent others from learning information about me without my consent. The *kind* of information doesn't matter. Nor does it matter *how long* the thermal imaging device is trained on my house. So I think that Justice Sotomayor is really barking up the wrong tree.

There is no question that someone holding a cell phone in his house is (as a default matter) entitled to privacy as to his cell phone's location. The real question here, I think, is whether a person who purchases or uses a cell phone thereby consents to information about the cell phone's location being provided to the cell phone carrier, information that the cell phone carrier is then free to pass on to the police. This is a tricky question, because it goes to the nature and definition of consent.

Explicit consent is not the issue, because it hasn't been given. So the question concerns *implicit* consent. Now when I walk out my front door onto the street, I am *implicitly* consenting to information about my location being acquired by anyone who happens to see me. Is the use of a GPS-enabled cell phone relevantly similar?

I'm not sure. Part of the reason why being out in public involves implicit consent to others discovering my location by sight is that I know that others can see me merely by turning their eyes in my direction. But if I use a cell phone, it's possible that I have no idea that the phone's GPS capabilities enable the police to track the phone's location. And in that case, I haven't consented. And if I haven't consented, then finding out my phone's location without a warrant is a violation of my right to privacy.

But knowledge is not, I think, sufficient for consent. I might know that I will be mugged if I walk through a particular alley. But my walking through the alley with that knowledge does not, ipso facto, involve implicit consent to being mugged.

Similarly, even if I know that the phone company can track my phone's location and that they are free to pass this information along to the police, that is not sufficient to constitute consent to the tracking. The same would be true if I knew that most every piece of clothing I bought at the mall had been fitted with a GPS device.

So, with respect to implicit consent, what's the difference, if any, between going out in public and using a cell phone? I'm not sure. But that's where the rubber hits the road. Anyhow, that's my take.

I'm not sure that Sotomayor wants to limit Kyollo in the way Sam Rickless suggests she does.

The discussion in her opinion deals with GPS devices and speaks of "public movements." The home is not "public." Kyollo involves a private space given special protections (see, e.g., Stanley v. Georgia) under the Constitution. It is inherently "familial" so to speak.

I welcome the professor's discussion but also appreciate Sotomayor's appropriate. Property interests (or bodily integrity when a "person" is being searched) is an important aspect of the 4A.

It is far from the sine qua non, but I have read people upset about the GPS use by the government in part since the government is in effect taking over property for its own use. The property concern is not as trivial (it is such a trivial trespass!) on that front.

@ Joe: If a police officer sees me act strangely on a public street and then decides to follow my car with her patrol car without a warrant as I go from a church to an underwear emporium to my office to Obama headquarters, she acquires religious, sexual, professional, and political information about me without violating 4A. So, again, it doesn't matter what *kind* of information the police acquire. Nor, I think, does it matter whether the chief of police decides to "put a tail" on me for several weeks (or longer) without a warrant. So, again, it doesn't matter how "long" the investigation continues. I really do think that Justice Sotomayor has not succeeded in putting her finger on the real problem here, which is whether those who use cell phones implicitly (or explicitly) consent to information about their location being passed on to their cell phone companies.

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